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What Is Medical Malpractice, and How Do You Prove It?

You shouldn’t expect to come out of the doctor’s office feeling worse than when you entered, although — due to medical malpractice — it does happen. While the adage of “it gets worse before it gets better” can sometimes apply while undergoing medical treatment, there are instances where a patient’s condition worsens as a result of a doctor or nurse breaching the duty of care. 

Here are details on what medical malpractice is, how to prove it and the benefits of seeking legal advice.

What is medical malpractice?

Medical malpractice occurs when a medical professional’s negligence or malicious intent results in harm to a patient. A malpractice injury could take the form of a worsened condition or a new injury not related to why you were seeing the doctor in the first place.

You may have encountered the term ‘medical negligence’, and naturally assumed that it’s synonymous with medical malpractice. While your lawyer can help you discern the difference in your particular case, medical negligence involves an honest mistake, whereas medical malpractice means a general practitioner is aware of the potential consequences before making a decision that could lead to injury.

Common examples of medical malpractice

Medical specialists practise under the Australian medical community guidelines, which explains that for medical malpractice to occur, it must be reasonable to expect that it could have been avoided.

Some examples of medical malpractice include:

  • Disregarding obvious symptoms that result in a misdiagnosis.
  • Performing medical treatment or surgery without proper skill or medical care.
  • Conducting procedures without informed consent.
  • Failing to advise or inform the patient of all associated risks of medical treatment. 
  • Prescribing the wrong medication.
  • Delaying testing or diagnosis. 
  • Lacking advice from an appropriate specialist. 

Despite the apparent obvious cause-and-effect nature of medical malpractice, the claims process is generally complex and necessitates legal expertise to ensure claimants are rightfully compensated. That’s why Gerard Malouf & Partners’ medical malpractice lawyers are here to help.

How to prove medical malpractice

A medical malpractice claim generally needs to be filed within three years of the injury and requires the fulfilment of certain criteria to be successful

  • A duty of care existed, which refers to the medical practitioner’s legal obligation to provide a reasonable and prudent standard of care to their patients. 
  • This duty of care was breached, either through an intentional act or lack of necessary action. 
  • You suffered as a result of this breach of duty — either economically or psychologically. 

When you meet with a medical malpractice lawyer, they will ask you questions about your treatment and what led you to believe malpractice occurred. From there, your case may either progress to a private settlement negotiation where your lawyer will negotiate a settlement on your behalf, or it may instead lead to litigation if a resolution cannot be reached. The specific length of your case depends on its legal process: the time it takes private settlement negotiations to finalise is generally shorter than litigation, as the court system can take anywhere from 18 months to three or more years to reach its end.

Evidence required in medical malpractice claims

Tying into the above criteria: the claimant’s legal representation must be able to objectively prove that their client’s injury is a direct result of the medical professional’s malpractice — which, unlike medical negligence cases, must also consider the professional’s intent. 

Although the required evidence may differ case-by-case, the examination and statement of a neutral third party expert is relevant among almost all cases — and is the evidence that holds the most weight. Naturally, the third-party professional is one who holds expertise in the field relevant to the injury: a heart injury requiring a cardiologist; a brain requiring a neurologist; and so on.

The third party expert may provide a written statement of their findings or appear in court as testimony, depending on the case. Beyond their testimony, other forms of evidence commonly include: 

  • Witness testimony: The word of bystanders who —generally first hand — witnessed the malpractice.
  • Medical records: To ensure that the injury was indeed sustained through malpractice, and is not due to a pre-existing injury. 
  • Consent documentation: Relating to documents whereby practitioners make patients aware of the potential risks associated with a medication or procedure. 


Prior to filing a medical malpractice claim, it’s best to gather as much evidence as you can. Beyond this, your lawyer can work with you to source pieces of evidence that may prove difficult to obtain to further strengthen your case.

Medical malpractice claims compensation

Compensable malpractice injuries generally fall into one or both of the following categories: economic and non-economic loss. 

Economic loss refers to any financial losses that have stemmed from the injury, including the cost of medical expenses, reduced future earning capacity and/or lost wages, among others. Non-economic loss, on the other hand, refers to pain and suffering as a result of the injury — the psychological harm that has reduced the claimant’s quality of life. 

The specific amount you’re compensated for depends on the nature of your case and the Australian state you live in. Because of this, consider consulting with a personal injury lawyer for personalised insight on what you may be owed. 

How expert legal advice can help maximise your compensation

Working against medical practitioners can be difficult to do on your own. At GMP Law, we have a team of experienced legal professionals to help support your case, with the help of trusted medical experts to glean advice from. 

Medical facilities have many laws and medical malpractice insurance policies that help protect medical specialists from being sued. It is our job, then, to protect your right to reasonable compensation despite these legal hurdles. Fighting for compensation in a malpractice case could be tricky, misleading and generally difficult to do on your own. That’s why we’re here to help.

From gathering evidence and talking to the right people to building a case and providing expert representation, your malpractice lawyer is there to help you get the compensation you need to recover. And to help alleviate financial pressure, we work on a no-win, no-fee basis — this means that we only get paid if your case is successful. 

If you have a viable case, we will work hard to help you earn the compensation you deserve under the law. Contact us today for a no-obligation consultation so we can go over the details of your medical negligence claim.

About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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